2015 Supreme(Raj) 1987
RAJASTHAN HIGH COURT
P.K.Lohra, J.
Smt. Mukut Raj Laxmi & Anr. - Appellant
Versus
Dr. Jitendra Singh & Ors. - Respondent
S.B.Civil Writ Petition No. 1195 of 2015.
Decided On : 26-11-2015
Advocates:
For the Petitioner:S.C. Maloo, Advocate.
For the Respondent Nos. 1 to 2:O.P. Mehta, Advocate.
For the Respondent No. 3:G.R. Singhvi, Advocate.
The court has a wide discretion in granting leave to a plaintiff for filing subsequent pleadings under Order 8, Rule 9, CPC, but this discretion must be exercised judiciously to prevent the plaintiff from setting up a new case or incorporating inconsistent pleadings.
Headnote:
CIVIL PROCEDURE CODE - ORDER 8, RULE 9 - SUBSEQUENT PLEADINGS - APPLICATION FOR LEAVE TO FILE SUBSEQUENT PLEADINGS - DISCRETION OF COURT - PRINCIPLES GOVERNING THE EXERCISE OF DISCRETION - COURT'S ANALYSIS AND CONCLUSION THAT THE RESPONDENTS-PLAINTIFFS HAVE NOT SET UP A NEW CASE BUT HAVE CONTROVERTED NEW FACTS PLEADED IN THE WRITTEN STATEMENT AND CLARIFIED THE FACTUAL POSITION - IMPUGNED ORDER ALLOWING THE APPLICATION OF THE RESPONDENTS-PLAINTIFFS UNDER ORDER 8, RULE 9, CPC IS JUSTIFIED AND DOES NOT WARRANT INTERFERENCE.
Fact of the Case:
The petitioners-defendants challenged the impugned order passed by the learned District Judge, Jaisalmer, which accepted the application of the respondents-plaintiffs under Order 8, Rule 9 read with Section 151 CPC in a suit for possession, mesne profits, and perpetual injunction. The respondents-plaintiffs had filed a suit claiming ownership of the property known as 'Mandir Palace,' alleging that the petitioners-defendants were licensees on part of the property and had adopted a defiant attitude towards them. The petitioners-defendants filed a written statement disputing their possession as licensees and raising additional pleas, including the claim of ownership on the anvil of the doctrine of adverse possession. The respondents-plaintiffs sought leave of the court to file subsequent pleadings to controvert the new facts and additional pleas raised in the written statement.
Finding of the Court:
The court observed that the learned court below had exercised its discretion judiciously within the four corners of Order 8, Rule 9, CPC. It noted that the respondents-plaintiffs had not set up a new case in the rejoinder but had attempted to controvert some of the new facts pleaded in the written statement and to clarify the factual position. The court also held that the impugned order was not vulnerable on the ground of belated presentation of the application or the length of the rejoinder, as there was no time limit prescribed for filing a rejoinder under the CPC and no restriction on the number of pages.
Issues: 1. Whether the learned court below exercised its discretion judiciously in allowing the application of the respondents-plaintiffs under Order 8, Rule 9, CPC? 2. Whether the impugned order is vulnerable on the ground of belated presentation of the application or the length of the rejoinder?
Ratio Decidendi: 1. The court has a wide discretion in granting leave to a plaintiff for filing subsequent pleadings under Order 8, Rule 9, CPC. 2. A plaintiff cannot be allowed to set up a new case or incorporate inconsistent pleadings in the guise of subsequent pleadings, but the plaintiff's right to file a replication to meet with some of the new facts averred in the written statement is permissible. 3. The court must adopt a realistic and pragmatic approach while considering an application under Order 8, Rule 9, CPC, taking into account the nature of the suit, the reliefs craved for, and the pleas sought to be raised in the written statement. 4. The court's discretion in granting leave to file subsequent pleadings is not unfettered and must be exercised judiciously, ensuring that the plaintiff does not set up a new case or incorporate inconsistent pleadings.
Final Decision: The writ petition was dismissed, upholding the impugned order allowing the application of the respondents-plaintiffs under Order 8, Rule 9, CPC.
JUDGMENT
1. - Imploring annulment of impugned order dated 15.01.2015 (Annex. 5) passed by learned District Judge, Jaisalmer (for short 'the learned court below'), the petitioners-defendants have laid this writ petition under Article 226 & 227 of Constitution of India.
2. By the order impugned, the learned court below has accepted the application of the respondents-plaintiffs under Order 8, Rule 9 read with Section 151 CPC in a suit for possession, mesne profits and perpetual injunction.
3. Succinctly stated facts of the case are that first and second respondents-plaintiffs jointly filed a suit for possession, mesne profits and perpetual injunction against the petitioners-defendants and proforma defendant-respondent No.3. It is, inter alia, averred in the plaint that late Maharawal Jawahir Singh was blessed with two sons namely late Maharawal Girdhari Singh, who is father of second petitioner and father-in-law of first petitioner and proforma respondent is second son of Maharawal Jawahir Singh. As such, the suit projected a dispute between close relatives. Late Maharawal Jawahir Singh was owner of a property at Jaisalmer which is a multistoried building utilised as place of residence, hotel business & museum known as 'Mandir Palace'. The complete description of the property is also mentioned in the plaint with site plan. It is further averred that part of this property which is shown with red marks in the annexed site plan is in occupation of the petitioners-defendants as licensee and presently their occupation on said part of the property is unauthorised. The details about the property initially in occupation of petitioners as licensee and then as unauthorised occupants is also mentioned in the plaint with complete details.
4. During the era of Princely State of Jaisalmer, 'Mariyada' was a legal way of transferring the property in the form of documentation. In his life time, Maharawal Jawahir Singh executed a Mariyada Instrument and after his death, late Maharawal Girdhari Singh also executed an alike document which was countersigned by Diwan of the Princely State, Shri M.R.Sapat to transfer Mandir Palace to proforma respondent Hukam Singh. It is stated in the plaint that before issuance of Mariyada document, it was published by a notification in the Gazette of Jaisalmer on 17.01.1929 and its contents were read out in Ijlas Darbar. Besides the aforesaid property of Mandir Palace, some other properties were also given by an Instrument of Mariyada to Shri Hukam Singh by late Maharawal Jawahir Singh with counter-signature of Diwan Shri L.R. Sikand on 28.02.1941. In this view of the mater, the proforma respondent acquired the ownership of Mandir Palace as well as other properties. Subsequently, proforma respondent Hukam Singh executed a gift deed of part of Mandir Palace in favour of his mother Rajdadi Smt. Kalyan Kumari on 07.03.1949 and as such she became owner of that part of Mandir Palace. That apart, proforma respondent also gifted the parts of property of Mandir Palace to his wife Smt. Girdhar Kumari and his sister-in-law (Bhabhi) Smt. Hawa Kumari on the same date i.e. 07.03.1949 and thereby both of them acquired ownership of the part of Mandir Palace in terms of gift deeds. In totality, the property of Mandir Palace was divided into four parts and first three parts were gifted to Smt. Kalyan Kumari, Smt. Girdhar Kumar and Smt. Hawa Kumari and fourth part was retained by proforma respondent as its owner.
5. After partition of the nation when State of Jaisalmer was merged in India, the respective parts of Mandir Palace became transferred properties of all the four incumbents including the proforma respondent. When Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for short 'the Act of 1952') came into force, the respective parts of Mandir Palace were declared as properties of all the four incumbents including the proforma respondent by Jagir Commissioner after due enquiry under Section 23 of the Act of 1952. Later on, R
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